But it’s far from anything we might call digital open justice. In fact, the licences for this courts data are limited to specific contractors, Freedom of Information requests have shown.

Courting Courtel

The Ministry of Justice site states:

“The following lists and services, Royal Courts of Justice, Crown Courts, selected County Courts, Case Archives and Legal News, can be accessed through Courtel on its CourtServe website.”

Courtel, a company based in Egham, Surrey, runs a number of free and paid-for services. It promotes itself as “an excellent example of private sector cooperation with government – in this case the Ministry of Justice – to the benefit of court users in England and Wales”.

The arrangement with Courtel is not new, but I – and others – have been asking how and why Courtel performs this role. Courtel’s website explains that its Courtserve 2000 service is “a time and money saver”.

It says the service costs “far less than you think, try it out at no charge, then wonder how you ever did without it!” How else can you get the information, it asks in its FAQ, answering itself: “Well you can always send someone down to the courts and read them off the notice boards, or try phoning! But why bother, we live in a digital world don’t we?”

“You have asked if any payment is exchanged for the data. The agreement between HMCTS and Courtel for the Crown and County Court lists is a concessionary Licence and no money is involved.

“You asked how the data is provided to Courtel. In the Crown Court there is secure software that allows Courtel to extract information directly from the Crown Court system. In the County Courts secure e-mail is used to transfer the data.

“You asked if the information was available to other publishers on the same basis. The Licence between Courtel and HMCTS is currently exclusive, with a rolling 12 month notice period applicable should either party seek to terminate the agreement. Any other interested publisher would need to contact HMCTS to express an interest in accessing this data.”

On learning this, Goodge submitted another request asking how this arrangement came to be and why an exclusive contract with Courtel is justified, given that section 14 of The Re-use of Public Sector Information Regulations 2005 states that:

“(1) Subject to paragraph (2), a public sector body shall not enter into an exclusive arrangement with any person including an applicant. (2) A public sector body may, where necessary for the provision of a service in the public interest, enter into an exclusive arrangement.”

“I’m not opposed in principle to privatisation of public services, so long as it delivers benefits to the taxpayer and the consumer. But this arrangement clearly doesn’t. Courtel are getting all the benefits of a data monopoly, while the taxpayer (via the court service) gets nothing in return as the data is being given to them for free.

“And the consumer loses out as the restrictive nature of Courtserve means that public access to the information is unduly limited and costly. (Not to mention the fact that Courtel’s contract with the court service requires them, if requested, to pass details of their subscribers to the court service. I wonder how many subscribers are actually aware of that?)

“I think this is bordering on scandalous. While other departments of government have made great strides towards opening up their data for public use, the Ministry of Justice and the court service have quietly headed off in the other direction and made access to their data less open instead. It’s time that was changed.”

Bailing out Bailii

Meanwhile, the Bailii service publishes judgments for free. Like Courtel, it also has a contract with HM Courts.

Another FoI request submitted by Mark Goodge confirmed that HM Courts paid Bailii £35,468 last year for its judgment publication service – hosted externally on Bailii’s site. Bailii also receives money from numerous legal societies and organisations, including the General Council of the Bar of England & Wales.

The MoJ told Goodge that

“BAILII is a contracted supplier of the Ministry of Justice to provide judgements to the public. BAILII do receive payment from the Ministry of Justice to assist the admin to be able to upload these judgements on behalf of the Judiciary. This payment information is commercially sensitive and has been redacted from the contract document schedules enclosed. The total sum spent with BAILII for 2010 /2011 was £35,468.

“At the moment the Royal Courts of Justice (RCJ) is the only government department who pay BAILII to publish our judgments. We provide BAILI with electronic copies of approved judgments, from the High Court and Court of Appeals. The majority of the judgements are sent on to BAILII from Civil Appeals and the High Court, plus other areas and individuals within the RCJ.

“As an example; The Administrative Court is currently required to publish all its substantive decisions on BAILII, together with any decisions in permission applications which are considered to be of public importance.”

Goodge asked whether the information supplied to BAILII also available to other
publishers on the same basis. They replied

“No, the information is available free of charge via the BAILII website. We have scheduled this requirement to be re-tendered in 2012.

“The approved judgments remain Crown Copyright. The CONTRACTOR cannot assign copyright to any recipient and must ensure within the terms and conditions of their service to the recipient, that the approved judgments shall not be further distributed, copied or otherwise transmitted without the prior approval of the AUTHORITY.”

Many lawyers enthusiastically praise the Bailii service, which has opened up free courts data to a much larger audience.

However, there are a number of limitations with the Bailii service that are important to flag up. Crucially, Bailii prevents scraping of the data, meaning that programmers cannot make the public data useful in other ways. On the Nearly Legal blog Francis Davey points out two main flaws: users are not able to make use of Bailii feeds or use Google to search it. He comments:

“If bailii adopted a more open policy on its information … I’d consider donating. As things stand (for example not being able to make use of bailii feeds or use google to search it) I’m a gnat’s whisker away from trying to persuade organisations I am a member of to stop donating to it. It could certainly gain more goodwill (and money) by being more open.”

So what?

The closed – and costly – nature of courts data is restricting legal research and analysis and public access to legal information.

“They said they could provide me with information on what cases would be heard the next day, but no more. It turned out they held listings for the week ahead, but they weren’t allowed to shared them with members of the public. If I wanted to attend a particular trial, I would have to harass the poor court officer every day to find out what was coming up. This seemed like a monumental waste of both my time and theirs.

“At first I wondered if the information was not made available because it was likely to change at short notice, or because it wasn’t collected in an easily shareable format. But information about forthcoming hearings is made available – for a fee – through a third party website [Courtel].”

Picking up on Mark Goodge’s FoI and the revelation of the exclusive licence, she says:

“This effectively ensures that any member of the public who is not registered with Courtserve will not be able to access the court listings (except through daily harassment of the court staff).”

Series finds that this arrangement “seems to fit within a wider pattern of a lack of transparency and open access to information in the UK legal system”.

“A system where the public have no free access to up to date copies of legislation. Where court judgments are not always published, and yet some of these unpublished judgments manage to find their way onto third party websites (sometimes only accessible through expensive subscriptions). Even academic legal journals seem to be beset by this information paucity; perhaps a result of a heavily monopolised and technologically outdated publishing culture.”

She continues:

“I find this situation more than a little perplexing. It would make more sense to me if the Ministry of Justice were in some way financially benefiting from the sale of the information. Given that they are not, what benefit does the license bring to them? The information must be shared, certainly, but it seems to me that in this day and age it would incur minimal costs to post the information they send to Courtel on their website.

“The only answer that occurs to me, is that the Ministry of Justice cannot (or believes it cannot) post the raw information on its website for data protection reasons. By outsourcing to Courtel – who restrict the users of the information – they can ensure the information distribution is kept to a minimum without the faff of having to register court list users themselves.

“Indeed, the contract itself contains quite a lengthy data protection clause (clause 5), restricting how long Courtel may store the data for and how they may process it. Another point in favour of this possibility, is that the HMCS website that gives the daily listings appears to have blocked internet crawlers that cache webpages (see, e.g., the Wayback machine for the HMCS site which seems to have been blocked from July 2009 onwards). This would prevent any third party from collating data on who had been involved in court proceedings in the past.”

She adds:

“Of course, that does not mean the Ministry of Justice’s reading of data protection law is correct, nor indeed means its license is compliant with the Re-use of Public Sector Information Regulations 2005 or the ideals of Open Justice. “

In another blog post, Mark Goodge also raises the issue of the possible illegality of the exclusive arrangement with Courtel, but clarifies that his gripe is not with Courtel’s commercial enterprise:

“I don’t object to Courtel making money from the data – their Courtserve 2000 software (and even the email alert system) is clearly a value added service and they’re fully entitled to charge for it.”

However, he continues,

“…what I do object to is the fact that Courtel have a monopoly on the data and that monopoly not only makes them the only organisation able to exploit it commercially but it also prevents non-profit organisations, community groups and individuals from using the data effectively.

“I can see no reason why court lists should not be published by the courts themselves on their own website under an Open Government licence – it would cost them no more than they currently spend on giving it away to Courtel, and it would allow a much wider use than is currently possible. If Courtserve 2000 is as good as Courtel say it is, then allowing competitors isn’t going to hurt them too much. On the other hand, if it’s not as good as it’s claimed to be, then some competition will be in everyone’s interest.”

Series and Goodge have raised important points. We need to question the Ministry of Justice’s handling of courts data and campaign for its release in more open and fair formats. Private contractors like Courtel should not have a monopoly on the data.

It’s time for Digital Open Justice. I intend to research and campaign more in this area. In the meantime, I’ve set up this Google Group for initial discussion.

Update – just as I had published my post, a response (delayed) came back from the MoJ to my own FoI request. It repeats the information given to Mark Goodge and confirms that the County Court daily lists are available without charge, following registration with Courtel.

The MoJ currently only holds a concessionary licence with Courtel, allowing the transfer of listing data from both the Crown and county courts (excluding the Royal Courts of Justice) to Courtel for the purpose of displaying the information on Courtel’s ‘Courtserve’ website. The licence between Courtel and MoJ is currently exclusive; with a rolling 12 month notice period applicable should either party seek to review or terminate the agreement. The Licence Agreement for the publication of county court lists has been in place since May 2010. The Licence Agreement for the publication of Crown Court lists was initially commenced in January 2006 and was last renewed in May 2009. The MoJ does not currently charge for access to this information and did not incur setting up costs for the Courtserve service. All such capital and operational expenditure was and still is incurred by Courtel Communications. Courtel publishes information regarding their various list publishing and value added distribution services on their website at http://www.courtserve.net . Access to the lists via the Courtserve website is free and only requires registration to the website. Please contact Courtel Communications if you require further detail. The service provided by Courtel has proved effective in readily providing access to court listing information for members of the legal profession, court users and members of the public seeking to obtain court hearing listing information. Any interested parties seeking to offer similar services as those provided by Courtel and obtain access to this Crown and county court listing data would need to contact the MoJ Procurement Division, contact details are below for your ease of reference:

Also, Bailli issued this statement about its funding in July 2011. It lists the £35k from HM Courts and says:

“The contract with Her Majesty’s Courts and Tribunals Service under which BAILII receives payments from Government sources continues until March 2012; BAILII hopes that it will be renewed but there is no guarantee that this will happen.”

I should make it clear that I think Bailii is an excellent resource, but the data could be made much more useful to lawyers, students, researchers, journalists and other members of the public.

“Digital Open Justice
Home Discussions About this group Apply for group membership View this group in the new Google Groups
You cannot view the group’s content or participate in the group because you are not currently a member. Members must be approved before joining.
Description: Campaigning for more legal and courts data to be made freely available online You must be a member of this group to read its archive. Apply for membership or contact the owner.”

Hmm …. so who is it that is complaining about Digital Open Justice! Open discussion groups anyone?

@hmmm I was expecting that ;-) I decided to keep the group closed for now as a place for people to share concerns and ideas as we decide a future (and collaborative) strategy. But I’ll open that for debate and we can think about making it completely open. Please do join the group!

Suggest you remind MoJ’s procurement department of the requirement to procure services concessions openly, even though the full requirements of the Public Contracts Regulations do not apply. Point them to the principles in the Telaustria case. Ask them to serve the 12 months’ contractual notice immediately. Good luck!

Meeja Law

Media law & ethics for online publishers, collected and written by Judith Townend (@jtownend)

Disclaimer: This site contains general information only. This site does not contain legal advice. This site is not responsible for the content of external sites. Enquiries should be made to: jt.townend [at] gmail.com.